Thoughts In Response to Spencer Ackerman #2

"God bless Ben," Spencer Ackerman writes, "he's really trying hard to think through what the rules ought to be for killing an American citizen accused of terrorist membership." My effort in that regard, he says, is "commendable . . . for spelling [due process standards] out explicitly, something no one else I've seen has done." But Spencer, kind words notwithstanding, is unconvinced. He wants more. Indeed, he says, "the most important process step . . . is a prior question" that I didn't address.

Spencer frames this question as follows: "What should the evidentiary standard be for determining an American citizen poses a threat even warranting discussion of assassination?" Despite this formulation, the body of his post actually deals less with evidentiary standards than it does with oversight mechanisms. While Al Aulaqi and company, Spencer says, were clearly "noxious propagandists,"

Is that enough to warrant assassination?

I refuse to accept the word of any member of the Obama administration that they are worse than that. When any member of the administration shows me evidence that they are, then I will consider that they are. But the stakes of killing an American citizen on the say-so of the government are, in my non-lawyer opinion, too grave to accept the mere assurance of a government official. To believe otherwise, in my non-lawyer opinion, is to be cavalier about both life and liberty.

Something must guard against President Whomever saying, "Oh, yeah, that guy's a dangerous terrorist. Order me up a double-tap." There must be evidence presented for that proposition. And then there must be a consideration of what the standards are for how great a threat a U.S. citizen represents. Then and only then can someone responsibly enter into a process like Ben's. I see nothing in Ben's process to guard against the whims of President Whomever; and that's the ballgame right there.

As I say, Spencer is really blurring two distinct issues here. The first issue is what Spencer terms "evidentiary standards"--that is, the question of what substantively do we need to establish about a U.S. national before we regard it as consistent with due process to target him. This is precisely what I was attempting to outline in my earlier post. And there is no small degree of protection against presidential whim in the substantive standard I outlined. There is a big difference, after all, between merely labeling someone a "dangerous terrorist" and finding, as I suggested is required, that he is an operational terrorist figure actively planning attacks, that capture is not feasible, and that the likely result of not acting when given an opportunity would be death or injury to other people. Under the standards I proposed, a president who authorized the targeting of a U.S. national with information that didn't justify such a finding would do so in breach of his oath to protect the Constitution.

The second issue, and the one that really animates Spencer's post, is the question of oversight. That is, he does not believe that merely having a high substantive standard would really restrain President Whomever. And he, quite fairly considers as an antecedent question to that of substantive standards the question of to whom President Whomever will be held accountable for his judgment under whatever standard exists. Does he have to present his evidence in any forum to anyone? Or is he entitled to act on his own, having merely satisfied himself as to the status of the target?

As a preliminary matter, let me say that on this score, my mind is open. I have anxieties about the idea of putting judges in the middle of this sort of operation, both out of concern for not judicializing intelligence and out of concern for not implicating federal judges in the dirtiest work of the intelligence community. (To cite only one reason for the anxiety, can you imagine the institutional damage it would do the judiciary the day a federal judge has to answer for approving an errant Predator strike?) There are also pretty significant constitutional barriers to such a regime. Still, I could imagine a judicial review mechanism that might, on balance, do more good than harm. And I certainly wouldn't reject the suggestion out of hand.

All that said, it is worth noting that no such regime today exists, so President Obama faced the problem of Anwar Al-Aulaqi with no extant framework for the sort of thing Spencer is suggesting. There is no forum to which to take the evidence, no forum in which to present it, no forum in which that evidence can be considered against any known legal standard; indeed, there isn't any known legal standard. The one to which Spencer is objecting is one I made up. There is reportedly one in an OLC opinion somewhere that some folks at OLC--using their best judgment and their best reading of case law--made up. Spencer here is demanding that Obama make a formal case against Al Aulaqi in the total absence of any known legal process by which to do that. The only processes that exist are the general rules for covert actions and whatever heightened scrutiny the executive branch has created for itself when dealing with a citizen.

So what is Spencer really saying here? I can think of three possible answers:

His comments could be read to suggest that the government should have taken its evidence to court under current law and asked for some kind of judicial approval for the targeting. If this is what Spencer means, it is a total non-starter. We don't live in a world of advisory opinions, after all. No judge would have entertained such an application. Nor, in the absence of a very clear framework to protect classified material, could the government ever dreamed of asking.

Second, Spencer might be suggesting that in the future we should have such a process. If this is his point, he is raising a very deep policy suggestion that warrants a great deal of attention and discussion. But critically, it is not a plausible criticism of Obama's handling of the Al Aulaqi matter.

Finally, Spencer might be suggesting that the government should at least be accountable to the public for such a targeting--that is, that these operations will not have legitimacy to the extent that the President keeps secret the program, its legal rationale and standards, and the evidence underlying targeting decisions. If this is his point, I am in full agreement. The secrecy associated with the drones program is understandable historically, but it has grown absurd as the program has ballooned in size and importance in U.S. counterterrorism policy. Today, everyone in the world knows that the United States kills Al Qaeda people with drones in Pakistan and (sometimes) Yemen. Each strike is a news story, and everyone knows who's flying the drones. The government talks liberally about the strikes to a great many reporters--though never, of course, on the record. It boasts of its triumphs. The program has become the central element of the nation's war against its enemy. And yet all of it is notionally a covert action; its legal rationales are classified and described only in the most general terms; the substantive standards for targeting are kept from public scrutiny; and the government feels no need--as Spencer describes--to share its evidence that a target was actually a legitimate target under the standard that it also won't articulate.

Some of this secrecy is necessary; these operations necessarily involve a great deal of legitimately classified intelligence, and the need to protect sources and methods is real.

But some of the secrecy is not necessary. And the farcical situation in which we conduct our covert operations in public but won't justify them publicly because they are covert, is not sustainable. It's not sustainable precisely because people like Spencer Ackerman will not have faith in a program conducted under these circumstances. Indeed, why exactly should they?

Benjamin Wittes is editor in chief of Lawfare and a Senior Fellow in Governance Studies at the Brookings Institution. He is the author of several books and is co-chair of the Hoover Institution's Working Group on National Security, Technology, and Law.